GUSTAVO LOPEZ MIRELES v. THE STATE OF TEXAS--Appeal from 332nd District Court of Hidalgo County

   NUMBER 13-02-706-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

GUSTAVO LOPEZ MIRELES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 332nd District Court

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Rodriguez and Garza

   Opinion by Chief Justice Valdez

Appellant, Gustavo Lopez Mireles, appeals from his conviction for murder in five issues. Specifically, he alleges that his conviction should be reversed and this Court should render a judgment of acquittal because (1) the warrant affidavit was insufficient on its face to establish probable cause to obtain samples of appellant=s blood, saliva and hair; (2) the trial court abused its discretion in denying Mireles=s motion to suppress evidence obtained pursuant to the search warrant; (3) the evidence is insufficient to sustain his conviction as the State failed to prove that the instrument of death was unknown to the grand jury; (4) the evidence is insufficient as the State failed to prove that the grand jury did not know that the instrument used was not a knife; and (5) the trial court erred in denying Mireles=s motion for a directed verdict.

Background

On June 23, 2001, Mary Jane Rebollar was found dead in her own car which had been abandoned in a field and set on fire. An autopsy revealed that she died of multiple stab wounds. The ensuing investigation led to the arrest and indictment of Mireles.

Mireles was charged in a three-count indictment: count one charged Mireles with capital murder, count two charged murder, and count three charged arson. Count two (murder) was presented in alternate paragraphs alleging two different manners of causing death, either (in paragraph one) by stabbing the victim with a knife or (in paragraph two) by stabbing the victim with Aa sharp object to the grand jurors unknown.@

Mireles pled not guilty. The trial court granted Mireles=s motion for a directed verdict as to count one and the first paragraph of count two, and the State later dismissed count three. The jury was accordingly only charged with the second paragraph of count two, which alleged that Mireles caused Rebollar=s death by stabbing her with an unknown object. Mireles was found guilty and the trial court imposed a life sentence.

Adequacy of Affidavit

By his first issue on appeal, Mireles asserts that the trial court erred in denying his motion to suppress evidence obtained as a result of a search warrant issued in violation of the requirements of the Texas Code of Criminal Procedure. Specifically, he alleges that the affidavit underlying the search warrant was insufficient to establish probable cause, and therefore any evidence obtained based on the warrant had to be excluded as Afruit of the poisonous tree.@ The search warrant required Mireles to provide samples of his blood, saliva and hair for forensic analysis.

A warrant may be issued to search for and seize property or items that are evidence for an offense or which tend to show that a particular person committed an offense. See Tex. Code Crim. Proc. Ann. art. 18.02(10) (Vernon Supp. 2004). A search warrant may not be issued for this kind of evidence unless supported by a sworn affidavit that sets forth the following facts sufficient to establish probable cause: (1) a specific offense has been committed, (2) the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. Id. art. 18.01(c) (Vernon Supp. 2004).

The task of the magistrate issuing a search warrant is to make a practical, common sense decision as to whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Trevino v. State, 875 S.W.2d 373, 375 (Tex. App.BCorpus Christi 1994, no pet.) (citations omitted). An affiant must present the magistrate with sufficient information so as to allow for a determination of probable cause; a merely conclusory statement will not do. Id. Although sufficiency should be determined from the "four corners" of the affidavit, the magistrate can make reasonable inferences from the facts presented which then support a common sense conclusion. Id. at 376. Probable cause may be founded upon hearsay and information received from informants. Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996). Specifically, a magistrate is entitled to rely upon information supplied by the police officer's own observations or through other sources of information. Trevino, 875 S.W.2d at 376.

According to the standard of review applied to questions of affidavit adequacy, the decision of the magistrate is to be accorded deference by reviewing courts and is only to be overruled if the decision extends beyond the bounds of reasonable disagreement. See Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Furthermore, the decision of the trial court at the suppression hearing regarding the adequacy of the warrant is to be given deference by the appellate court. See Hinojosa v. State, 4 S.W.3d 240, 247 (Tex. Crim. App. 1999).

Mireles alleges that the affidavit did not adequately explain why samples of his blood, saliva and hair were required, given that there was no statement in the warrant naming him the suspect or any statement that the suspected assailant was believed to have left blood, saliva or hair samples at the scene.

We disagree and conclude that the affidavit in this case was adequate to support the magistrate=s reasonable conclusion that a search warrant should issue. The affidavit, contrary to Mireles=s assertions, does identify him in two places as Athe suspect,@ clearly indicating that the police believed him to have committed the offense described. It also includes statements from witnesses establishing the connection between Mireles and Rebollar. The affidavit notes that the victim, Rebollar, had been killed by multiple stab wounds. We conclude the affidavit supporting the search warrant was sufficient to allow the magistrate to draw a reasonable inference that, because of the violent nature of Rebollar=s death, it was likely that blood, saliva or hair of the assailant would have been left at the scene. Although this conclusion is not explicitly made, it is easily inferred from the available information. See Morales v. State, 745 S.W.2d 483, 489 (Tex. App.BCorpus Christi 1988, no pet.) (A[T]he evidence itself provides a common sense answer to how appellant's blood would have been deposited at the scene of the crime . . . It would be ridiculous to require the investigator to state such obvious inferences in his affidavit.@).

The magistrate=s decision to issue the warrant based on the attached affidavit does not extend beyond the bounds of reasonable disagreement, and we accordingly defer to his decision, as well as to the subsequent evaluation by the trial court. See Swearingen, 143 S.W.3d at 811. Mireles=s first issue is overruled.

Statements in Affidavit

By his second issue, Mireles argues that the trial court erred in denying his motion to suppress evidence illegally obtained from the search warrants because the warrants were supported by affidavits containing untrue statements.

A trial court's ruling on a motion to suppress is reviewed for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). If the issue is one of application of law to facts, and the ultimate resolution of that issue does not turn on an evaluation of credibility and demeanor of a witness but rather is based on undisputed facts, then the reviewing court may review that issue de novo. See id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc).

An affidavit supporting a search warrant has a presumption of validity. See Franks v. Delaware, 438 U.S. 154,171 (1978). A defendant who alleges that an affidavit contains false information bears the burden of proof in a AFranksmotion@ and must (1) establish deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false, (2) accompany these allegations with an offer of proof stating the supporting reasons, and (3) show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support the issuance of the warrant. Cates v. State, 120 S.W.3d 352, 356 (Tex. Crim. App. 2003) (citing Ramsey v. State, 579 S.W.2d 920, 922-23 (Tex. Crim. App. 1979)). A trial court=s ruling on a Franks motion is owed great deference, and its ruling will be overruled only if it lies outside the bounds of reasonable disagreement. Janecka, 937 S.W.2d at 462.

Mireles asserts that the statements of three witnesses, Maribel Mireles, Delia Rodriguez and Alejandro Rivera, were falsely reported by Investigator Noe Canales in his affidavit. Mireles argues this was proven by the hearing on his Franks motion when Canales admitted that the affidavit contained hearsay statements and included information, such as Delia=s statement, that he had not obtained personally but instead received from other unidentified officers. Mireles also points to Alejandro=s testimony from the hearing that because he was illiterate, he could not review the statement written on his behalf by officers, as well as to an affidavit from Maribel denying that she made the statements attributed to her in the warrant affidavit. Mireles cites Juarez v. State, 586 S.W.2d 513, 517-18 (Tex. Crim. App. 1979) and Hass v. State, 790 S.W.2d 609, 612 (Tex. Crim. App. 1990) in support of this assertion.

We first address the statements of Delia and Alejandro. Information in a warrant affidavit may be based on hearsay. Belton v. State, 900 S.W.2d 886, 893 (Tex. App.BEl Paso 1995, pet. ref'd). Therefore, the witnesses= recorded statements, although hearsay, substantiate the magistrate=s finding of probable cause to search. Furthermore, when there has been cooperation between members of the same law enforcement agency, the sum of the information known to the cooperating officers at the time of an arrest by any one of the officers involved is to be considered in determining whether there was sufficient probable cause. See Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App.1984) (en banc); Taylor v. State, 82 S.W.3d 134, 138 (Tex. App.BSan Antonio 2002, no pet.). Thus, the trial court should not have considered the statements of Delia and Alejandro in the affidavit to be improper simply because the affidavit consolidated the reports of all investigating officers. Also, Alejandro admitted at the Franks hearing that he spoke to an investigator and that his oral statement was written down, read to him and signed by him. We defer to the trial court=s evaluation of the credibility and demeanor of witnesses, Perales v. State, 117 S.W.3d 434, 437 (Tex. App.BCorpus Christi 2003, pet. ref'd); Morrison v. State, 71 S.W.3d 821, 827 (Tex. App.BCorpus Christi 2002, no pet.), and determine that, based on the record and the trial court=s decision, Mireles did not meet his burden of overcoming the presumption of affidavit validity with regard to the statements of Delia and Alejandro. See Franks, 438 U.S. at 171.

We now turn to Maribel=s statement. In conjunction with Mireles=s Franks motion, Maribel submitted an affidavit swearing that Astatements cited as my own in Noe Canales= affidavits were not made by me@ and Aare false.@ Without weighing the credibility of the warrant affidavit against Maribel=s subsequent denial of her statement therein, we note that had her statement been excised from the warrant affidavit, the remaining evidence would remain more than sufficient to establish probable cause. See Cates, 120 S.W.3d at 356. All information attributed to her in the warrant affidavit was corroborated by other sources also mentioned in the warrant affidavit.

Finally, we note that the two cases cited for support by Mireles, Juarez and Hass, are both inapplicable to the facts here. As stated in Hass, A[t]he dishonesty in the affidavits consists of the affiants' claims to have personally witnessed events which were beyond their purview.@ Hass, 790 S.W.2d at 612; see Juarez, 586 S.W.2d at 517-18. There were no such claims in the warrant affidavit here; instead, Canales listed information received from witnesses and fellow investigators without falsely asserting that he had received this information personally.

We conclude that the trial court=s ruling on Mireles=s Franks motion should be accorded deference. See Janecka, 937 S.W.2d at 462. We overrule Mireles=s second issue.

Grand Jury Due Diligence

By his third issue, Mireles asserts that the evidence is insufficient to sustain his conviction as the State failed to prove that the instrument of death was unknown to the grand jury. He argues that there is a material variance between the indictment and the proof as to the manner, means and method of death. Mireles relies on Matson v. State, which states that if evidence at trial shows what type of object was used to inflict the injury, an issue is raised with respect to whether the grand jury had information as to the object used, and Ain that case, the State must prove that the grand jury did not know the manner and means of inflicting the injury and that it used due diligence in attempts to ascertain the manner or means.@ Matson v. State, 819 S.W.2d 839, 847 (Tex. Crim. App. 1991). Mireles asserts that the State failed to meet this burden.

The court of criminal appeals, however, has expressly disavowed the "due diligence" rule of Matson. See Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Fagan v. State, 89 S.W.3d 245, 249 (Tex. App.BTexarkana 2002, pet. ref'd) ("The rule requiring the state to show that the grand jury exercised due diligence in determining the instrumentality of the offense is no longer relevant to our analysis."). A non essential element of the charge, such as an allegation that the object used to cause injury was unknown to the grand jury, may properly be excluded from a hypothetically correct jury charge. In re A.J.G., 131 S.W.3d 687, 694 (Tex. App.BCorpus Christi 2004, pet. denied); see Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). So long as the essential elements of the crime charged have to be found by the jury in order for a guilty verdict to be returned, the State does not have to additionally and separately prove the good faith and due diligence of the grand jury in determining non essential elements of the charge, such as what kind of weapon was used. See Malik, 953 S.W.2d at 240; A.J.G., 131 S.W.3d at 694.

Accordingly, we conclude that the State did not err by failing to prove that the grand jury used due diligence in it attempts to determine what kind of weapon was used, as this is no longer necessary. We overrule Mireles=s third issue.

Identity of Weapon

By his fourth issue, Mireles asserts that the evidence is insufficient to sustain his conviction as the State failed to prove that the grand jury did not know that the instrument used was not a knife. His argument is as follows: the penal code defines Aknife@ as Aany bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing the person with the instrument.@ Tex. Pen. Code Ann. ' 46.01(7) (Vernon 2003). The evidence at trial showed that Rebollar was stabbed multiple times with a screwdriver or similar instrument, though the murder weapon itself was never identified. Because, Mireles contends, a screwdriver or similar tool would fall under the penal code=s definition of Aknife,@ the grand jury must have known that the weapon was in fact a Aknife,@ and, accordingly, the indictment alleging that the weapon was unknown to the grand jury was erroneous. He also argues that the evidence proving the means and manner of death was legally insufficient.[1]

Sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Gollihar, 46 S.W.3d at 252; Malik, 953 S.W.2d at 240. Therefore, with regard to Mireles=s contention that the indictment was erroneous because of the exclusion of the word Aknife,@ we note that a description of the murder weapon can be excluded from a hypothetically correct jury charge and therefore is unnecessary in evaluating the legal sufficiency of the evidence. See Fagan, 89 S.W.3d at 249. We also note that it was never conclusively established that Rebollar was in fact stabbed by a screwdriver, as the weapon used was never found, and furthermore, that a screwdriver is not generally considered a Abladed@ instrument equivalent to a knife. The indictment, therefore, was not legally insufficient.

Furthermore, we note that the evidence presented at trial was sufficient for a rational jury to conclude that a sharp object of some kind was used to stab the victim. See Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000). The medical examiner testified extensively regarding the cause of death and presented his autopsy report and numerous photographs of the victim to the jury. He counted at least forty-six separate stab wounds, which penetrated Rebollar=s esophagus and windpipe and were all Avery small,@ with two blunt edges and no flat edge. He concluded that Rebollar died from a loss of blood due to the stab wounds.

Given that the jury charge was correct and the evidence regarding the manner and means of death was legally sufficient, we overrule Mireles=s fourth issue.

Motion for Directed Verdict

By his final issue on appeal, Mireles complains that the trial court erred in denying his motion for a directed verdict of not guilty regarding count two, paragraph two of the indictment.

A challenge to the trial court=s denial of a motion for directed verdict is treated as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). However, in this section of his brief, Mireles only repeats his earlier assertions that there was insufficient evidence to demonstrate the grand jury=s due diligence in ascertaining the identity of the weapon, which we have addressed above and do not repeat here. He also adds a complaint regarding his indictment=s disjunctive nature. Mireles suggests that an allegation in paragraph one of the indictment that the murder weapon was a knife should preclude the allegation in paragraph two (the paragraph ultimately submitted to the jury) that the murder weapon was an unknown sharp object.

Our Court has previously ruled on the propriety of disjunctive indictments and jury charges:

The hypothetically correct jury charge, so long as it conforms to the Malik requirements, can be presented in the disjunctive, giving the jury mutually exclusive alternatives as to how the offense may have been committed. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Mendez v. State, 716 S.W.2d 712, 713 (Tex. App.BCorpus Christi 1986, pet. ref'd). For example, the jury charge can allege that a murder was committed by shooting the victim with a handgun or by strangling the victim, during the commission of robbery or sexual assault. Kitchens, 823 S.W.2d at 257, n.2.

A.J.G., 131 S.W.3d at 694. The court of criminal appeals also addressed this question and found disjunctive indictments to be proper. See Zanghetti v. State, 618 S.W.2d 383, 387 (Tex. Crim. App. 1981). An indictment may contain as many separate paragraphs charging the same offense as is necessary to meet the contingencies of the evidence. Graham v. State,19 S.W.3d 851, 853 (Tex. Crim. App. 2000). In this case, the indictment alleged that Mireles caused the victim=s death by stabbing her with a knife or by stabbing her with an object unknown to the grand jury. At trial, the State proved the latter manner and means of causing death, and the charge was properly submitted to the jury on those grounds alone.

As there is no evidence to show that any other element of the jury charge was improper, we conclude that the trial court did not err in denying the motion for directed verdict on these grounds. We accordingly overrule Mireles=s fifth issue.

Conclusion

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 23rd day of June, 2005.

[1]The standard of review for questions of legal sufficiency is well established and we will not repeat it here. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000).